LEE ENRIQUE GARCIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lee Enrique Garcia appeals the revocation of his probation and 54-month prison sentence for grand theft convictions. The court affirms the revocation based on Garcia's violation of a probation condition prohibiting association with persons engaged in criminal activity, but reverses as to an alleged firearm possession violation because it was not alleged in the affidavit of violation.
The court affirms the revocation based on the condition 13 violation alleged in the affidavit but reverses as to the firearm possession violation because it was not alleged. The court affirms the sentences because the trial court could consider firearm possession as an uncharged aggravating circumstance in sentencing, even though it could not be used as an independent basis for revocation.
[1] A trial court cannot revoke probation based on a violation not alleged in the affidavit of violation.
[2] A trial court may consider uncharged aggravating circumstances when imposing a sentence, provided the sentence does not exceed the statutory maximum for the charged offen…
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Join FLexlaw to unlock all legal intelligence“Revoking probation for conduct not charged is fundamental error.”
Establishes the core principle that probation revocation must be based on violations alleged in the affidavit
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGarcia was on probation for two grand theft third degree convictions. During an episode, Garcia associated with persons engaged in criminal activity a…
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Lee Enrique Garcia appeals the trial court’s order revoking his probation and sentencing him to fifty-four months in prison, concurrent, for his two earlier convictions of grand theft third degree. The trial court verbally announced that Garcia violated condition 13 of his probation, which prohibited him from “associating with persons engaged in criminal activity.” This violation was alleged in the affidavit of violation and the evidence supports the trial court’s finding. Accordingly, we affirm as to this violation without further discussion. The trial court also announced that Garcia violated his probation by possessing a firearm during the episode on which the State based the condition 13 violation. Although the State’s evidence supported this finding, we must reverse as to this •violation because it was not alleged *824in the affidavit.1 See, e.g., Lynn v. State, 2 So.3d 1088 (Fla. 5th DCA 2009) (“Revoking probation for conduct not charged is fundamental error.”) (citation omitted). On remand, the trial court is directed to clarify in its violation order that the revocation of Garcia’s probation is based solely upon Garcia’s violation of condition 13.
We affirm the revocation in this case because it is clear from our review of the record that the trial court would have revoked Garcia’s probation based solely upon its finding that Garcia violated condition 13 of his probation. See id. We affirm the sentences for the same reason. Although Garcia argues that the trial judge improperly considered his possession of a firearm when exercising her sentencing discretion, we find that it was appropriate for the judge to consider the evidence of Garcia’s firearm possession as a sentencing factor in this case. As explained in Rogers v. State, 963 So.2d 328 (Fla. 2d DCA 2007):
In a charging instrument, it is only necessary under the reasoning suggested by Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] that “the charged facts” make defendants “aware of the ‘heaviest punishment’ they face if convicted.” Harris [v. United States], 536 U.S. [545,] 562, 122 S.Ct. 2406 [153 L.Ed.2d 524 (2002) ] (quoting Bishop, Criminal Procedure § 85, at 54). In imposing sentences, judges may consider “uncharged ‘aggravating circumstances’ that, while increasing the defendant’s punishment, have not ‘swell[ed] the penalty above what the law has provided for the acts charged.’ ” Id.
Id. at 335 (footnote omitted). The State could not use Garcia’s possession of a firearm as an independent basis for revoking Garcia’s probation because it was not alleged as a basis for revocation in the affidavit. However, the trial court was still permitted to consider Garcia’s possession of the firearm as an “uncharged aggravating circumstance” when imposing a sentence within the range permitted by law based upon the condition 13 violation.
AFFIRMED; REMANDED WITH DIRECTIONS.
PALMER, LAWSON and JACOBUS, JJ., concur.
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Little v. State, 143 So. 3d 465 (Fla. 5th DCA 2014)…ather than actual crime of leaving scene of accident with personal injury). By revoking Little’s probation for taking pseudoephedrine, the trial court based the violation on a charge that was not alleged in the affidavit. See, e.g., Garcia v. State, 73 So. 3d 823, 823-24 (Fla. 5th DCA 2011) (reversing trial court’s revocation for firearm possession where affidavit alleged different criminal activity). Therefore, we reverse the probation revocation order due to the violation of Little’s due process right to s…
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Person v. State, 83 So. 3d 940 (Fla. 3d DCA 2012)…o submit weekly job search logs as instructed by his probation officer.” (emphasis added). This finding is also unsustainable because (a) it represents a deviation from the accusations of the affidavit of violation of probation; see Garcia v. State, 73 So. 3d 823 (Fla. 5th DCA 2011); Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987), and (b) there was insufficient evidence as to whether he had in fact failed to be “gainfully employed.” See Galego v. State, 27 So. 3d 152 (Fla. 3d DCA 2010); Mitchell v. Stat…
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Clayton v. State, 100 So. 3d 725 (Fla. 5th DCA 2012)…less affirm the revocation and sentence in this case because it is apparent from the record that the lower court would have revoked Clayton’s probation based solely upon its finding that he violated condition 5 of his probation. See Garcia v. State, 73 So. 3d 823, 824 (Fla. 5th DCA 2011). This matter is remanded to the lower court so it can clarify in its violation order that the revocation of Clayton’s probation is based solely upon his violation of condition 5. AFFIRMED in part, REVERSED in part, and REMA…
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Harris v. United States, 536 U.S. 545 (U.S. 2002)
- Rogers v. State, 963 So. 2d 328 (Fla. 2d DCA 2007)
- Rashean Lynn v. State, 2 So. 3d 1088 (Fla. 5th DCA 2009)